The Board of Pesticides Control (BPC) is convening a working group to develop a proposed regulation regarding the use of pesticides in schools. At the board’s July 27, 2001, meeting, the Maine Toxics Action Coalition (MTAC), supported by MOFGA and the Maine Toxics Action Center, presented the BPC with a formal request to initiate rulemaking on the issue of pesticide use in Maine’s schools. (See June/Aug MOF&G). Prompted by an Ag Department survey revealing widespread illegal use of pesticides by untrained and unlicensed personnel in Maine schools, and lack of student, staff, or parental notification, Coalition Executive Director Kathleen McGee submitted a proposed regulation that would require schools to adopt a written integrated pest management (IPM) policy, would prevent schools from applying any pesticides classified as “known, likely, or probable” carcinogens in any school settings, and would require written parental notification at least five days before pesticide applications. Industry lobbyist Deborah Vanderbeek, representing the “American Crop Protection Association,” strongly opposed the proposal, arguing that it was “Draconian,” and would “prohibit use of all pesticides in schools and school grounds.” After lengthy discussion, the board directed the staff to gather more information and “make sure all affected parties have had input into language for a proposed rule.”

McGee was concerned to learn, in the notice of the board’s September 14, 2001, meeting, that the BPC staff, without contacting MTAC, had substantially rewritten the proposed rule – eliminating all provisions prohibiting carcinogens from use in schools, and substituting an annual notice and registry system for written notice to all parents in advance of every pesticide application. At the September 14 meeting, BPC executive director Bob Batteese explained that the board’s attorney advised that communicating with MTAC in the redrafting process without involving any other interested parties would be a potential violation of regulations governing rulemaking. At Attorney Mark Randlett’s suggestion, the board authorized the initiation of a working group to draft a proposed regulation under a “consensus rulemaking process.” That rule will then be put out for a public hearing, so that people who don’t participate in the working group can voice their views on the proposal. Maine Toxics Action Coalition and MOFGA will be represented on the working group. At its October 26, 2001, meeting, the board picked 14 individuals to participate in the working group, out of 24 who expressed interest. The Maine Toxics Action Coalition, the Toxics Action Center and MOFGA will all be represented in the process.

At the discussion on school pesticide regulation on September 14, Batteese also expressed concern about the expense involved in implementing IPM in the schools. His figures suggested, however, that a substantial portion of the expense could be covered by federal EPA grants. The state of Maryland, according to staff investigation, has spent $436,000 over the last six years in developing a school IPM program. Of their current annual budget of $116,500, all but $36,000 is from EPA funds. Massachusetts, which enacted legislation containing provisions almost identical to the MTAC proposed regulation, has received a $300,000 EPA grant to implement the program. Maine has already received EPA funds for addressing the issue of school pesticide use. The Department of Agriculture received a total of $19,000 for the pesticide use survey and for workshops for school personnel on indoor and outdoor pesticide use. (This did not cover IPM specialist Kathy Murray’s time on the survey, which was covered by the Department.) Most recently, Don Barry of the University of Maine Cooperative Extension has received $15,000 to develop a school IPM manual and model policy, on which MOFGA and other interested parties have had input, and which is very near completion.TopBPC Staff Position on Aquatic Pesticides Draws Fire from DEP

A citizen petition to the BPC to address the problem of illegal aquatic pesticide use on Maine’s lakes and ponds drew a recommendation of essentially “no action” from BPC staff, which in turn drew the ire of an employee of the Department of Environmental Protection (DEP), and a “reconsider” directive from the board. In response to a Maine Public Radio report on illegal application of an aquatic pesticide on a Scarborough pond without the required permit from the DEP, and with a pesticide that wasn’t legal to use in Maine, Tracy Walls, a vernal pools biologist who works as a volunteer coordinator for Maine Audubon, requested in July that the BPC initiate rulemaking to address the problem. Walls’ request had the support of the Maine Volunteer Lakes Monitoring Association, the Lakes Environmental Association, MOFGA, and the DEP. Phil Garwood represented the DEP at the board’s July 27 meeting when the request was first considered and urged the board to find a way to “control the availability of the pesticide to those who might use it illegally …. I encourage the board and staff to be very creative and aggressive because I think you have a much better way to solve this than the DEP.” The idea urged on the board at the July 27 meeting was to classify aquatic pesticides as restricted or limited use, which would make their sales illegal to anyone but a licensed pesticide applicator.

Following the July 27 meeting, BPC staff investigated the aquatic pesticides sold in Maine and produced a three-page memo discussing alternative approaches to the problem. The staff determined that of the 125 products registered in Maine that have aquatic uses, only eight are advertised primarily for use in water; the others have a variety of different uses, including forestry, agriculture, ornamental and industrial uses. Reasoning that “Restricted Use Pesticide Dealers would likely complain about their increased costs of doing business while General Use Pesticide Dealers would likely complain about lost revenue from not being able to sell these products, “the staff recommended against any new regulations restricting sales and instead opted for “Vigorous Enforcement of Existing Laws and Regulations and Expanded Educational Efforts.”

Phil Garwood first learned of this recommendation when he received the BPC agenda for September 14. Garwood sent an e-mail to Bob Batteese and Director of Enforcement Henry Jennings, expressing frustration that the DEP was not involved in staff discussions leading to the recommendation, and to the “very short notice” of the board meeting, which he was unable to attend. Garwood then challenged the staff’s analysis and priorities: “I also find it very sad that the BPC staff apparently have more concern over business complaints about making less money than for the effects that illegal uses of pesticides may have on the environment… These businesses are making money by giving other people the means to violate the law without any requirement that the customers get told what the law is! Further, the out-of-state business interests that might be inconvenienced are making money through misleading claims which encourage illegal actions by the purchasers.” Garwood also questioned “vigorous enforcement” as a sufficient response to the problem: Enforcement, Garwood noted, “can only occur AFTER THE FACT. DEP cannot ENFORCE until the violation occurs, along with the damage. This “do nothing” option may seem, from a narrow viewpoint to be practical, but if you consider the whole picture, it is not workable, and certainly not protective of environment or human health.” [emphasis in original, Sept. 11, 2001 e-mail]

Deputy DEP Commissioner Brook Barnes came to the board’s September 14, 2001, meeting. Barnes supported Garwood’s general concerns. “If we were to attempt to vigorously enforce this smaller issue,” Barnes noted, it would be to the detriment of pulp and paper, clean air, our stock and trade of enforcement.” Barnes commended the staff on “identifying the universe of what’s out there,” but urged the board to “continue to go down the road of at least taking the cream off the top. If there are eight products the customer can go in a store and take off the shelf for weeds in their ponds, we should at least address those.”

Henry Jennings agreed that the board “had an obligation to continue down the path to work with the DEP. We haven’t resolved the possibility of crafting language [for a regulation] yet.” The board directed the staff to take a further look at the possibilities.TopPresque Isle Retiree Requests Stronger Drift/Notification Rules

When retired Syracuse University geology professor Gary Boone stepped out of his Presque Isle Home the morning of July 21, 2001, he had no reason to expect anything out of the ordinary. He and his wife, however, were “just about blown away by an intense odor” as they opened the front door. Investigation indicated that an unlicensed employee of Caron’s Lawn and Property Maintenance of Mars Hill was applying the herbicide Gordon’s Trimec Class to control broadleaf weeds to a half acre of lawn several houses down the street. The employee was allegedly under the supervision of a licensed master applicator who was simultaneously applying to another yard in the neighborhood. Boone called Caron’s office in Mars Hill, and was advised that the herbicide was a “low odor” product and had been applied in accordance with the label. Boone initially thought “this will subside, I won’t become sick.” However, the intense odor persisted around his home for “seven to ten days” later, causing respiratory distress and other symptoms that persisted much longer. Boone reported to the BPC at its October 26, 2001, meeting that “my lungs and throat were badly damaged for at least a month, and a cascading effect brought on a coronary problem that I had to deal with later.” Boone said that following the application he had also experienced “many of the effects listed on the Material Safety Data Sheets” for Trimec, including a “neurologically based tremor” in his arms and hands that had just begun to decrease in the last couple of weeks.

Boone contacted both the Presque Isle BPC office and the Augusta office within several days after the incident, requesting information on the toxicity of Trimec and on how to get on the pesticide notification registry. Because he never specifically claimed that any regulations had been violated, however, the BPC did not initiate an investigation at that time. Two weeks later, the BPC initiated an investigation after Boone contended that the product must have been improperly mixed to cause his symptoms. The applicator’s logs inspected by BPC Presque Isle investigator Max Miller provided no evidence of violation of any regulations, and Miller did not recommend any enforcement action. Boone strongly suspected, however, that “for a ‘low odor’ product to have that intensity of odor seven to ten days after, it must have been a higher concentration than what was reported, and not properly mixed.” He also felt that an application in such a densely settled area should not have been permissible on such a breezy day (the local National Weather Service forecast for that morning was 10-15 mph winds; the applicator’s log reported 8 mph, but the applicator had not made any precise measurement of windspeed). BPC regulations allow spraying in velocities of up to 15 miles per hour.

Boone, who had not even been aware of the existence of the BPC before July 27, appeared before the BPC on October 26, 2001, with a detailed list of recommendations for strengthening the protections for people who may be particularly sensitive to pesticide drift. Boone recommended that permissible wind velocities for urban areas be reduced to a 5 mph maximum, and that notice to all abutting property owners be made 48 hours in advance – not just to those who are listed on the pesticide notification registry. Boone’s memo argued that “It is safer and more prudent to assume that abutting property owners are allergic or sensitive to some degree to exposure to herbicides, rather than to assume that they are not. Thus, this gives adjacent owners a minimum of time to plan to leave their properties for x number of days, while the vapor drift is still menacing to their health. This, alone, could save untold numbers of dollars of health insurance costs, and costs out-of-pocket to the insured. And for those without health insurance, the savings would be enormous.”

Vaughan Holyoke, BPC chair, appeared incredulous about some aspects of Boone’s complaint. “I use Trimec on my lawn and spray it with a hand sprayer, and I never knew that it had an odor. It boggles my mind that you would smell it seven days later,” Holyoke commented. Nevertheless Holyoke asked the staff to prepare a memo on the rationale for the various rules that Boone had questioned, and to put further discussion of Boone’s recommendations down for the agenda for November board meeting.